Trial Chamber Declines to Order Serbia-Montenegro to Produce Documents

The Prosecution (OTP) might have the feeling its case is slowly being transformed into an animal of a different species than the one it originally conceived. What once resembled a giraffe is beginning to look more like a dachshund.

In response to the prosecution's plea for judicial assistance in securing documents from the Republic of Serbia and Montenegro, the Trial Chamber adjourned the matter and gave the Government two more months to respond. The OTP has been trying to obtain some of these documents since April 2001. Lead Prosecutor Geoffrey Nice characterized the Government's response (or lack of it) as the lowest level of cooperation possible, which he described as: if the OTP 'can identify a document with sufficient clarity that its existence cannot be denied' and is persistent in making the request, the OTP might get it.

The OTP provided the Court with a list of 162 priority documents it feels are critical to fully present the facts. Of particular importance, Mr. Nice said, are 90 documents it seeks to introduce through a protected witness who is scheduled to testify within two weeks. While Mr. Vladimir Djeric, the Government's representative, stated that he was certain it could provide information with respect to these 90 documents in the short term, the Court did not mandate the Government to do so. Indeed, the Court seemed to rely on the Government's good intentions, while Mr. Nice argued its actions contradicted them. The 90 documents, for example, were first requested in June of last year. In its submission, the OTP stated, “the FRY government has succeeded in stalling, avoiding or ignoring a substantial number of RFAs [Requests for Assistance]. . . .”

The documents the OTP seeks include “key documentation relating to the Supreme Defence Council, the Supreme Command, the army and the police.” In its 13 December 2002 application to the Court, the OTP stated, “There has been effectively no response to requests for access to the most important and most sensitive archives, which include archives of: the Yugoslav Army; the Republic of Serbia Ministry of Internal Affairs; and the Republic of Serbia State Security Service.”

The Government of Serbia & Montenegro argued that the ICTY Statute and rules do not give the OTP a right of access to survey governmental archives. Even if it did, they claimed, the OTP's application did not meet requirements of ICTY Rule 54bis, 'Orders Directed to States for the Production of Documents.' In response, Mr. Nice expressed astonishment that the Government should suddenly claim the OTP had no right of access to archives, since it had never claimed this before as a reason to deny an OTP request for documents. Indeed, the Minister of Justice had allowed just this practice in the past. He also pointed out that the Federation of Bosnia-Herzegovina, Republika Srpska and Croatia had not raised such an objection -- and had permitted the prosecution access to their archives. Allowing the OTP to survey archival material for relevant documents, the OTP argued in its written submission, was originally devised as a way to reduce a state’s burden to do so.

The underlying issue is whether the OTP can obtain access to material it can identify only in a general way – such as “all orders issued by Colonel General Nebojsa Pavkovic . . . concerning the engagement or use of VJ and Serbian police forces in combat operations during the 1999 conflict in Kosovo.” Or must it describe each document with a specificity possible only by knowing that a particular document exists? There are obvious problems with this approach. Moreover, Prosecutor Nice cautioned that it would be important for the Court to establish what an archive is, since the Government could “take all Supreme Defense Council documents, put them in a container and say this is an archive,' to which it claims the OTP has no right of access.

In making its oral order, the Trial Chamber did not address the legal arguments made by either side. It ruled that “a final determination would be premature,” and “it would be more productive to adjourn the proceeding to allow the Government to respond to the priority list of the Prosecution within two months.” It further directed the Government “to comply with the OTP request as far and as soon as possible or to indicate the ground of objections where taken to any request.” At the end of two months, the Trial Chamber will consider whether further action or an additional hearing is necessary.

If the Court sticks to its present timetable, that would leave the OTP with about one month left to present its case. That gives the OTP with little alternative, short of an interlocutory appeal, but to rely on Serbia & Montenegro’s good graces to provide needed information soon enough to be useful in its case, i.e. well in advance of the Court’s two month deadline. This places enormous pressure on the OTP, since the documents must be introduced through an appropriate witness, and the OTP must provide the accused with the names of witnesses 10 days in advance of their testimony. If the Government of Serbia & Montenegro does not provide documentation in time, the OTP may find it difficult to introduce.

This is but one in a series of rulings that tend to limit the OTP's case. Here, the Trial Chamber deferred to state authority, appearing to rank diplomatic niceties above judicial necessities. The OTP is right to ask why Serbia-Montenegro should need more protection for its documents than other states and entities in the former Yugoslavia. Given the time limits the Court and circumstances have imposed on the OTP's case, the Trial Chamber should, at the least, have issued an order which more clearly specified the State's responsibilities by a date certain. Reliance on the good offices of a State whose cooperation with the Tribunal is an ongoing issue at the UN Security Council, without some findings to support it, is questionable. In two months' time, the Trial Chamber, as well as the OTP, may rue its failure to act more firmly.